TRADE PRACTICES AMENDMENT (INFRASTRUCTURE ACCESS) BILL 2009

This is a Bill, not an Act. For current law, see the Acts databases.

TRADE PRACTICES AMENDMENT (INFRASTRUCTURE ACCESS) BILL 2009

2008-2009

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Trade Practices Amendment

(Infrastructure Access) Bill 2009

No. , 2009

(Treasury)

A Bill for an Act to amend the Trade Practices Act

1974, and for related purposes

i Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Binding time limits and limited merits review

Part 1--Amendments

Trade Practices Act 1974

Part 2--Application of amendments

Schedule 2--Services that are ineligible to be declared services

Trade Practices Act 1974

Schedule 3--Fixed principles in access undertakings

Part 1--Amendments

Trade Practices Act 1974

Part 2--Application of amendments

Schedule 4--Amending access undertakings

Part 1--Amendments

Trade Practices Act 1974

Part 2--Application of amendments

Schedule 5--Other amendments

Part 1--Amendments

Trade Practices Act 1974

Part 2--Application of amendments

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 1

A Bill for an Act to amend the Trade Practices Act

1974, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Trade Practices Amendment

(Infrastructure Access) Act 2009.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedules 1 to

The day after this Act receives the Royal

Assent.

3. Schedule 5,

items 1 to 11

The day after this Act receives the Royal

Assent.

4. Schedule 5,

item 12

Immediately after the commencement of the

provision(s) covered by table item 3.

5. Schedule 5,

items 13 to 25

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 3

Schedule 1--Binding time limits and limited

merits review

Part 1--Amendments

Trade Practices Act 1974

1 Subparagraph 44F(2)(b)(i)

After "declared", insert ", with the expiry date specified in the

recommendation".

2 Subsection 44F(2) (note 1)

Omit "target".

3 Subsection 44F(2) (note 2)

Repeal the note, substitute:

Note 2:

The Council may request information and invite public submissions

on the application: see sections 44FA and 44GB.

4 After section 44F

Insert:

44FA Council may request information

(1) The Council may give a person a written notice requesting the

person give to the Council, within a specified period, information

of the kind specified in the notice that the Council considers may

be relevant to deciding what recommendation to make on an

application under section 44F.

(2) The Council must:

(a) give a copy of the notice to:

(i) if the person is not the applicant--the applicant; and

(ii) if the person is not the provider of the service--the

provider; and

(b) publish, by electronic or other means, the notice.

(3) In deciding what recommendation to make on the application, the

Council:

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

4 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

5 Section 44GA

Repeal the section, substitute:

44GA Time limit for Council recommendations

Council to make recommendation within the consideration period

(1) The Council must make a recommendation on an application under

section 44F within the consideration period.

(2) The consideration period is a period of 180 days (the expected

period), starting at the start of the day the application is received,

unless the consideration period is extended under subsection (7).

Stopping the clock

(3) In working out the expected period in relation to a recommendation

on an application under section 44F, in a situation referred to in

column 1 of an item of the following table, disregard any day in a

period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

An agreement is

made in relation

to the

application

under

subsection (5)

The first day of

the period

specified in the

agreement

The last day of the period specified

in the agreement

A notice is given

under subsection

44FA(1)

The day on

which the notice

is given

The last day of the period specified

in the notice for the giving of the

information

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 5

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

requesting

information in

relation to the

application

(4) Despite subsection (3):

(a) do not disregard any day more than once; and

(b) the total period that is disregarded under that subsection must

not exceed 60 days.

Stopping the clock by agreement

(5) The Council, the applicant and the provider of the service (if the

provider is not the applicant) may agree in writing that a specified

period is to be disregarded in working out the expected period.

(6) The Council must publish, by electronic or other means, the

agreement.

Council may extend time for making recommendation

(7) If the Council is unable to make a recommendation within the

consideration period (whether it is the expected period or the

consideration period as previously extended under this subsection),

it must, by notice in writing to the designated Minister, extend the

consideration period by a specified period.

(8) The notice must:

(a) specify when the Council must now make a recommendation

on the application; and

(b) include a statement explaining why the Council has been

unable to make a decision on the recommendation within the

consideration period.

(9) The Council must give a copy of the notice to:

(a) the applicant; and

(b) if the applicant is not the provider of the service--the

provider.

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

6 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Publication

(10) If the Council extends the consideration period under

subsection (7), it must publish a notice in a national newspaper:

(a) stating that it has done so; and

(b) specifying the day by which it must now make a

recommendation on the application.

Failure to comply with time limit does not affect validity

(11) Failure by the Council to comply with a time limit set in this

section does not affect the validity of a recommendation made

under this section.

6 Subsection 44GB(3)

Repeal the subsection, substitute:

Consideration of submissions

(3) Subject to subsection (6), in deciding what recommendation to

make on the application, the Council:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

7 Subsection 44H(9)

Repeal the subsection, substitute:

(9) If the designated Minister does not publish under section 44HA his

or her decision on the declaration recommendation within the

period starting at the start of the day the recommendation is

received and ending at the end of 60 days after that day:

(a) the designated Minister is taken, immediately after the end of

that 60-day period:

(i) to have made a decision under subsection (1) in

accordance with the declaration recommendation; and

(ii) to have published the decision under section 44HA; and

(b) if the Council recommended that the service be declared:

(i) the designated Minister is taken to have specified that

the declaration begins to operate immediately after the

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 7

period of 21 days starting at the start of the day the

decision is taken to have been published; and

(ii) the expiry date of the declaration is taken to be the

recommended expiry date specified in the declaration

recommendation.

(10) Despite subsection (9), if subsection (3), (3A), (6B) or (6C)

prevent the designated Minister from declaring the service, the

designated Minister is taken, immediately after the end of the

60-day period referred to in subsection (9):

(a) to have decided not to declare the service; and

(b) to have published the decision under section 44HA.

8 Subsection 44J(3) (note)

Repeal the note.

9 At the end of section 44J

Add:

(7) If the designated Minister does not publish under subsection (4) his

or her decision on the revocation recommendation within the

period starting at the start of the day the recommendation is

received and ending at the end of 60 days after that day, the

designated Minister is taken, immediately after the end of that

60-day period:

(a) to have made a decision that the declaration be revoked; and

(b) to have published that decision in accordance with this

section.

10 Section 44JA

Repeal the section.

11 At the end of subsection 44K(4)

Add "based on the information, reports and things referred to in

subsection 44ZZOAA(7)".

12 Subsection 44K(4) (note)

Repeal the note, substitute:

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

8 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

13 Subsection 44K(6)

Repeal the subsection, substitute:

(6) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

(6A) Without limiting subsection (6), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(6B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the provider of the service; and

(iii) the person who applied for the declaration

recommendation; and

(iv) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

14 At the end of subsection 44L(3)

Add "based on the information, reports and things referred to in

subsection 44ZZOAA(7)".

15 Subsection 44L(3) (note)

Repeal the note, substitute:

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

16 Subsection 44L(5)

Repeal the subsection, substitute:

(5) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 9

(5A) Without limiting subsection (5), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

17 Subsection 44M(3) (note 1)

Omit "target".

18 Subsection 44M(3) (note 2)

Repeal the note, substitute:

Note 2:

The Council may request information and invite public submissions

on the application: see sections 44MA and 44NE.

19 At the end of Subdivision A of Division 2A of Part IIIA

Add:

44MA Council may request information

(1) The Council may give a person a written notice requesting the

person give to the Council, within a specified period, information

of the kind specified in the notice that the Council considers may

be relevant to deciding what recommendation to make on an

application under section 44M.

(2) The Council must:

(a) give a copy of the notice to:

(i) if the person is not the applicant--the applicant; and

(ii) if the person is not the provider of the service--the

provider; and

(b) publish, by electronic or other means, the notice.

(3) In deciding what recommendation to make on the application, the

Council:

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

10 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

20 Subsection 44N(1) (note 1)

Repeal the note.

21 Subsection 44N(1) (note 2)

Omit "Note 2", substitute "Note".

22 At the end of section 44N

Add:

(4) If the Commonwealth Minister does not publish under

section 44NG his or her decision on a recommendation under

section 44M within the period starting at the start of the day the

recommendation is received and ending at the end of 60 days after

that day:

(a) the Commonwealth Minister is taken, immediately after the

end of that 60-day period:

(i) to have made a decision under subsection (1) in

accordance with the recommendation made by the

Council under section 44M; and

(ii) to have published that decision under section 44NG; and

(b) if the Council recommended that the Commonwealth

Minister decide that the access regime is an effective access

regime for the service, or proposed service--the decision is

taken to be in force for the period recommended by the

Council under subsection 44M(5).

23 Subsection 44NA(5)

After "it is", insert "an effective access regime".

24 Subsection 44NA(6)

After "it is not", insert "an effective access regime".

25 Subsection 44NA(6) (note 1)

Omit "target".

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 11

26 Subsection 44NA(6) (note 2)

Repeal the note, substitute:

Note 2:

The Council may request information and invite public submissions

on the application: see sections 44NAA and 44NE.

27 After section 44NA

Insert:

44NAA Council may request information

(1) The Council may give a person a written notice requesting the

person give to the Council, within a specified period, information

of the kind specified in the notice that the Council considers may

be relevant to deciding what recommendation to make on an

application under section 44NA.

(2) The Council must:

(a) give a copy of the notice to:

(i) if the person is not the applicant--the applicant; and

(ii) if the person is not the provider of the service--the

provider; and

(b) publish, by electronic or other means, the notice.

(3) In deciding what recommendation to make on the application, the

Council:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

28 Subsection 44NB(1) (note 1)

Repeal the note.

29 Subsection 44NB(1) (note 2)

Omit "Note 2", substitute "Note".

30 After subsection 44NB(3)

Insert:

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

12 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(3A) If the Commonwealth Minister does not publish under

section 44NG his or her decision on a recommendation under

section 44NA within the period starting at the start of the day the

recommendation is received and ending at the end of 60 days after

that day:

(a) the Commonwealth Minister is taken, immediately after the

end of that 60-day period:

(i) to have made a decision under this section in accordance

with the recommendation made by the Council under

section 44NA; and

(ii) to have published that decision under section 44NG; and

(b) if the Council recommended that the Commonwealth

Minister extend the period for which the decision under

section 44N is in force--the extension period is taken to be

the extension period recommended by the Council under

subsection 44NA(5).

31 Section 44NC

Repeal the section, substitute:

44NC Time limit for Council recommendations

Council to make recommendation within the consideration period

(1) The Council must make a recommendation on an application under

section 44M or 44NA within the consideration period.

(2) The consideration period is a period of 180 days (the expected

period), starting at the start of the day the application is received,

unless the consideration period is extended under subsection (7).

Stopping the clock

(3) In working out the expected period in relation to a recommendation

on an application under section 44M or 44NA, in a situation

referred to in column 1 of an item of the following table, disregard

any day in a period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 13

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

An agreement is

made in relation

to the

application

under

subsection (5)

The first day of

the period

specified in the

agreement

The last day of the period specified

in the agreement

A notice is given

under subsection

44MA(1)

requesting

information in

relation to the

application

The day on

which the notice

is given

The last day of the period specified

in the notice for the giving of the

information

A notice is given

under subsection

44NAA(1)

requesting

information in

relation to the

application

The day on

which the notice

is given

The last day of the period specified

in the notice for the giving of the

information

(4) Despite subsection (3):

(a) do not disregard any day more than once; and

(b) the total period that is disregarded under that subsection must

not exceed 60 days.

Stopping the clock by agreement

(5) The Council, the applicant and the provider of the service (if the

provider is not the applicant) may agree in writing that a specified

period is to be disregarded in working out the expected period.

(6) The Council must publish, by electronic or other means, the

agreement.

Council may extend time for making recommendation

(7) If the Council is unable to make a recommendation within the

consideration period (whether it is the expected period or the

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

14 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

consideration period as previously extended under this subsection),

it must, by notice in writing to the Commonwealth Minister, extend

the consideration period by a specified period.

(8) The notice must:

(a) specify when the Council must now make its

recommendation on the application; and

(b) include a statement explaining why the Council has been

unable to make a decision on the recommendation within the

consideration period.

(9) The Council must give a copy of the notice to:

(a) the applicant; and

(b) if the applicant is not the provider of the service--the

provider.

Publication

(10) If the Council extends the consideration period under

subsection (7), it must publish a notice in a national newspaper:

(a) stating that it has done so; and

(b) specifying the day by which it must now make a

recommendation on the application.

Failure to comply with time limit does not affect validity

(11) Failure by the Council to comply with a time limit set in this

section does not affect the validity of a recommendation made

under this section.

32 Section 44ND

Repeal the section.

33 Subsection 44NE(3)

Repeal the subsection, substitute:

Consideration of submissions

(3) Subject to subsection (6), in deciding what recommendation to

make on the application, the Council:

(a) must have regard to any submission made on or before the

day specified in the notice; and

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 15

(b) may disregard any submission made after the day specified in

the notice.

34 At the end of subsection 44O(3)

Add "based on the information, reports and things referred to in

subsection 44ZZOAA(7)".

35 Subsection 44O(3) (note)

Repeal the note, substitute:

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

36 Subsection 44O(5)

Repeal the subsection, substitute:

(5) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for the review; and

(ii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

37 Subsection 44PA(3) (note 2)

Omit "target".

38 Subsection 44PA(3) (note 3)

Repeal the note, substitute:

Note 3:

The Commission may request information and invite public

submissions on the application: see sections 44PAA and 44PE.

39 After section 44PA

Insert:

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

16 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

44PAA Commission may request information

(1) The Commission may give a person a written notice requesting the

person give to the Commission, within a specified period,

information of the kind specified in the notice that the Commission

considers may be relevant to deciding whether to approve or refuse

to approve a tender process under section 44PA.

(2) The Commission must:

(a) if the person is not the applicant--give a copy of the notice to

the applicant; and

(b) publish, by electronic or other means, the notice.

(3) In deciding whether to approve or refuse to approve the tender

process, the Commission:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

40 Section 44PD

Repeal the section, substitute:

44PD Time limit for Commission decisions

Commission to make decision within 90 days

(1) The Commission must make a decision on an application under

subsection 44PA(1) within the period of 90 days (the expected

period) starting at the start of the day the application is received.

Stopping the clock

(2) In working out the expected period in relation to a decision on an

application under subsection 44PA(1), in a situation referred to in

column 1 of an item of the following table, disregard any day in a

period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 17

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

An agreement is

made in relation

to the

application

under

subsection (4)

The first day of

the period

specified in the

agreement

The last day of the period specified

in the agreement

A notice is given

under subsection

44PAA(1)

requesting

information in

relation to the

application

The day on

which the notice

is given

The last day of the period specified

in the notice for the giving of the

information

A notice is

published under

subsection

44PE(1) inviting

public

submissions in

relation to the

application

The day on

which the notice

is published

The day specified in the notice as

the day by which submissions may

be made

(3) Despite subsection (2), do not disregard any day more than once.

Stopping the clock by agreement

(4) The Commission and the applicant may agree in writing that a

specified period is to be disregarded in working out the expected

period.

(5) The Commission must publish, by electronic or other means, the

agreement.

Deemed approval as a competitive tender process

(6) If the Commission does not publish under subsection 44PF(1) its

decision on the application within the expected period, it is taken,

immediately after the end of the expected period, to have:

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

18 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(a) approved the tender process as a competitive tender process;

and

(b) published the decision to approve the process and its reasons

for that decision; and

starting 21 days after the start of the day the decision is taken

to have been published.

41 Subsection 44PE(3)

Repeal the subsection, substitute:

Consideration of submissions

(3) Subject to subsection (6), in making its decision, the Commission:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

42 At the end of subsection 44PG(3)

Add "based on the information, reports and things referred to in

subsection 44ZZOAA(7)".

43 Subsection 44PG(3) (note)

Repeal the note, substitute:

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

44 At the end of subsection 44PG(4)

Add "(other than the power to request information under subsection

44PAA(1))".

45 Subsection 44PG(5)

Repeal the subsection, substitute:

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 19

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the person who made the application under subsection

44PA(1) requesting approval of a tender process as a

competitive tender process; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

46 At the end of subsection 44PH(3)

Add "based on the information, reports and things referred to in

subsection 44ZZOAA(7)".

47 Subsection 44PH(3) (note)

Repeal the note, substitute:

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

48 Subsection 44PH(5)

Repeal the subsection, substitute:

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the person who made the application under subsection

44PA(1) requesting approval of a tender process as a

competitive tender process; and

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

20 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(iii) for a review of a decision under subsection 44PC(2)--

the provider of the service; and

(iv) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

49 Subsection 44V(1) (note 1)

Omit "target".

50 Section 44XA

Repeal the section, substitute:

44XA Time limit for Commission's final determination

Commission to make final determination within 180 days

(1) The Commission must make a final determination within the

period of 180 days (the expected period) starting at the start of the

day the application is received.

Stopping the clock

(2) In working out the expected period in relation to a final

determination, in a situation referred to in column 1 of an item of

the following table, disregard any day in a period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

An agreement is

made in relation

to the arbitration

under

subsection (4)

The first day of

the period

specified in the

agreement

The last day of the period specified

in the agreement

A direction is

given under

subsection

44ZG(1) to give

The first day of

the period

specified for the

giving of the

The last day of the period specified

for the giving of the information or

the making of the submission

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 21

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

information or

make a

submission

within a

specified period

information or

the making of

the submission

A decision is

published under

subsection

44ZZCB(4)

deferring

consideration of

the dispute while

the Commission

considers an

access

undertaking

The day on

which the

decision is

published

The day on which the Commission

makes its decision on the access

undertaking under subsection

44ZZA(3)

4 The

Commission,

under subsection

44ZZCBA(1) or

(2), defers

arbitrating the

dispute while a

declaration is

under review by

the Tribunal

The day on

which the

Commission

gives the notice

to defer

arbitrating the

dispute

The day the Tribunal makes its

decision under section 44K on the

review

(3) Despite subsection (2), do not disregard any day more than once.

Stopping the clock by agreement

(4) The Commission and the parties to the access dispute may agree in

writing that a specified period is to be disregarded in working out

the expected period.

(5) The Commission must publish, by electronic or other means, the

agreement.

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

22 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Deemed final determination

(6) If the Commission does not publish under section 44ZNB a written

report about a final determination within the expected period, it is

taken, immediately after the end of the expected period, to have:

(a) made a final determination that does not impose any

obligations on the parties or alter any obligations (if any) that

exist at that time between the parties; and

(b) published a written report about the final determination under

section 44ZNB.

51 At the end of subsection 44ZP(3)

Add "based on the information, reports and things referred to in

subsection 44ZZOAA(7)".

52 Subsection 44ZP(3) (note)

Omit "target".

53 At the end of subsection 44ZP(4)

Add "(other than the power to request information under subsection

44ZG(1))".

54 Subsection 44ZP(5)

Repeal the subsection, substitute:

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the other party or parties to the final determination; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 23

55 At the end of subsection 44ZX(3)

Add "based on the information, reports and things referred to in

subsection 44ZZOAA(7)".

56 Subsection 44ZX(3) (note)

Repeal the note, substitute:

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

57 Subsection 44ZX(5)

Repeal the subsection, substitute:

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the other party or parties to the contract; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice; and

58 Subsection 44ZZA(7) (note 1)

Omit "target".

59 Subsection 44ZZA(7) (note 2)

Repeal the note, substitute:

Note 2:

The Commission may request information and invite public

submissions in relation to its decision: see sections 44ZZBCA and

44ZZBD.

60 Subsection 44ZZAA(8) (note 1)

Omit "target".

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

24 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

61 Subsection 44ZZAA(8) (note 2)

Repeal the note, substitute:

Note 2:

The Commission may request information and invite public

submissions in relation to its decision: see sections 44ZZBCA and

44ZZBD.

62 Subsection 44ZZBB(8) (note 1)

Omit "target".

63 Subsection 44ZZBB(8) (note 2)

Repeal the note, substitute:

Note 2:

The Commission may request information and invite public

submissions in relation to its decision: see sections 44ZZBCA and

44ZZBD.

64 Section 44ZZBC

Repeal the section, substitute:

44ZZBC Time limit for Commission decisions

Commission to make decision on application within 180 days

(1) The Commission must make a decision on an access undertaking

application or an access code application within the period of 180

days (the expected period) starting at the start of the day the

application is received.

Stopping the clock

(2) In working out the expected period in relation to an access

undertaking application or an access code application, in a situation

referred to in column 1 of an item of the following table, disregard

any day in a period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

An agreement is

The first day of

The last day of the period specified

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 25

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

made in relation

to the

application

under

subsection (4)

the period

specified in the

agreement

in the agreement

A notice is given

under subsection

44ZZBCA(1)

requesting

information in

relation to the

application

The day on

which the notice

is given

The last day of the period specified

in the notice for the giving of the

information

A notice is

published under

subsection

44ZZBD(1)

inviting public

submissions in

relation to the

application

The day on

which the notice

is published

The day specified in the notice as

the day by which submissions may

be made

A decision is

published under

subsection

44ZZCB(4)

deferring

consideration of

whether to

accept the access

undertaking, in

whole or in part,

while the

Commission

arbitrates an

access dispute

The day on

which the

decision is

published

The day on which the final

determination in relation to the

arbitration of the access dispute is

made

(3) Despite subsection (2), do not disregard any day more than once.

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

26 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Stopping the clock by agreement

(4) The Commission and:

(a) for an access undertaking application--the provider of the

service; and

(b) for an access code application--the industry body or its

replacement;

may agree in writing that a specified period is to be disregarded in

working out the expected period.

(5) The Commission must publish, by electronic or other means, the

agreement.

Deemed final determination

(6) If the Commission does not publish under section 44ZZBE an

access undertaking decision or an access code decision within the

expected period, it is taken, immediately after the end of the

expected period, to have:

(a) made a decision to not accept the application; and

(b) published its decision under section 44ZZBE and its reasons

for that decision.

44ZZBCA Commission may request information

(1) The Commission may give a person a written notice requesting the

person give to the Commission, within a specified period,

information of a kind specified in the notice that the Commission

considers may be relevant to making a decision on an access

undertaking application or an access code application.

(2) The Commission must:

(a) give a copy of the notice to:

(i) in the case of an access undertaking application--the

provider of the service (unless the provider is the

person); and

(ii) in the case of an access code application--the industry

body that gave the application to the Commission

(unless the body is the person); and

(b) publish, by electronic or other means, the notice.

(3) In making a determination, the Commission:

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 27

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

65 Subsection 44ZZBD(3)

Repeal the subsection, substitute:

Consideration of submissions

(3) Subject to subsection (6), in making its decision on the application,

the Commission:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

66 At the end of subsection 44ZZBF(3)

Add "based on the information, reports and things referred to in

subsection 44ZZOAA(7)".

67 Subsection 44ZZBF(3) (note)

Repeal the note, substitute:

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

68 At the end of subsection 44ZZBF(4)

Add "(other than the power to request information under subsection

44ZZBCA(1) and the power to propose amendments under

section 44ZZAAA)".

69 Subsection 44ZZBF(5)

Repeal the subsection, substitute:

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

28 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the provider of the service; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

70 After section 44ZZO

Insert:

44ZZOAA Information to which Tribunal may have regard on

review

Tribunal to notify decision maker

(1) If an application for review of a decision (however described) is

made under this Part, the Tribunal must notify the decision maker

of the application.

(2) If the application is made under section 44K, 44L, 44LJ, 44LK or

44O, the Tribunal must also notify the Council of the application.

Decision maker to give material to Tribunal

(3) The decision maker must give the following information to the

Tribunal within the period specified by the Tribunal:

(a) if the decision is taken to have been made because of the

operation of subsection 44H(9), 44H(10), 44J(7), 44LG(6),

44LI(7), 44N(4) or 44NB(3A)--all of the information that

the Council took into account in connection with making the

recommendation to which the decision under review relates;

(b) if the decision is taken to have been made because of the

operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)--

any information or documents given to the Commission in

connection with the decision to which the review relates,

other than information or documents in relation to which the

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 29

Commission could not have regard because of subparagraph

44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);

took into account in connection with the making of the

decision to which the review relates.

Tribunal may seek information to clarify information

(4) The Tribunal may give a written notice to a person who provided

the information (the original information) referred to in

subsection (3) to the decision maker requesting the person give to

the Tribunal, within a specified period, information of a kind

specified in the notice for the purposes of clarifying the original

information.

(5) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) if the application is made under section 44K, 44L, 44LJ,

44LK or 44O--the Council; and

(iii) if the application is made under section 44PG, 44PH,

44ZP, 44ZX or 44ZZBF--the Commission; and

(iv) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Certain material before the Tribunal not to be disclosed

(6) The Tribunal may, on the application of a person, prohibit or

restrict the disclosure of the contents of a document or other

information given to the Tribunal under this section if the Tribunal

is satisfied that it is desirable to do so because of the confidential

nature of the document or other information, or for any other

reason.

Tribunal only to consider particular material

(7) For the purposes of a review under this Part, the Tribunal:

(a) subject to paragraph (b), must have regard to:

(i) the information given to the decision maker in

connection with the making of the decision to which the

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

30 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

review relates and that was given to the Tribunal under

subsection (3); and

(ii) any information given to the Tribunal under

subsection (4) within the specified period; and

(iii) any thing done as mentioned in subsection 44K(6),

44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5),

44ZP(5), 44ZX(5) or 44ZZBF(5); and

(iv) any information or report given to the Tribunal in

relation to the review under subsection 44K(6A),

44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A),

44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A)

within the specified period; and

(b)

may

disregard:

(i) any information given to the Tribunal under

subsection (4) after the specified period has ended; and

(ii) any information or report of the kind specified in a

notice under subsection 44K(6A), 44L(5A), 44LJ(6),

44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A),

44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal

after the specified period has ended.

(8) In this section:

decision maker, in relation to an application for review under this

Part, means:

(a) if the application was made under section 44K, 44L, 44LJ or

44LK--the designated Minister; or

(b) if the application was made under section 44O--the

Commonwealth Minister; or

44ZP, 44ZX, or 44ZZBF--the Commission.

71 Section 44ZZOA

Repeal the section, substitute:

44ZZOA Time limit for Tribunal decisions

(1) The Tribunal must make a decision on a review under this Part

within the consideration period.

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 31

(2) The consideration period is a period of 180 days (the expected

period), starting at the start of the day the application for review is

received, unless the consideration period is extended under

subsection (7).

Stopping the clock

(3) In working out the expected period in relation to an application for

review, in a situation referred to in column 1 of an item of the

following table, disregard any day in a period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

An agreement is

made in relation

to the

application

under

subsection (5)

The first day of

the period

specified in the

agreement

The last day of the period specified

in the agreement

A notice is given

under subsection

44ZZOAA(4)

requesting

information in

relation to the

decision to

which the

application

relates

The day on

which the notice

is given

The last day of the period specified

in the notice for the giving of the

information

A notice is given

under subsection

44K(6A),

44L(5A),

44LJ(6),

44LK(6),

44O(5A),

44PG(5A),

44PH(5A),

The day on

which the notice

is given

The last day of the period specified

in the notice for the giving of the

information or the report

Schedule 1 Binding time limits and limited merits review

Part 1 Amendments

32 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

44ZP(5A),

44ZX(5A) or

44ZZBF(5A)

requiring

information or a

report to be

given in relation

to the review

(4) Despite subsection (3), do not disregard any day more than once.

Stopping the clock by agreement

(5) The following may agree in writing that a specified period is to be

disregarded in working out the expected period:

(a)

the

Tribunal;

(b) the person who applied for review;

44LK or 44O--the Council;

(d) if the application is made under section 44PG, 44PH, 44ZP,

44ZX or 44ZZBF--the Commission;

(e) any other person who has been made a party to the

proceedings for review by the Tribunal.

(6) The Tribunal must publish, by electronic or other means, the

agreement.

Extension of time for making decision

(7) If the Tribunal is unable to make a decision on an application for

review within the consideration period (whether it is the expected

period or the consideration period as previously extended under

this subsection), it must, by notice in writing to the designated

Minister, extend the consideration period by a specified period.

(8) The notice must:

(a) specify when the Tribunal must now make its decision on the

application for review; and

Binding time limits and limited merits review Schedule 1

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 33

(b) include a statement explaining why the Tribunal has been

unable to make a decision on the review within the

consideration period.

(9) The Tribunal must give a copy of the notice to:

(a) the person who applied for review; and

(b) if the application for review is made under section 44K, 44L,

44LJ, 44LK or 44O--the Council; and

44PH, 44ZP, 44ZX or 44ZZBF--the Commission; and

(d) any other person who has been made a party to the

proceedings for review by the Tribunal.

Publication

(10) If the Tribunal extends the consideration period under

subsection (7), it must publish a notice in a national newspaper:

(a) stating that it has done so; and

(b) specifying the day by which it must now make a decision on

the application for review.

Failure to comply with time limit does not affect validity

(11) Failure by the Tribunal to comply with a time limit set in this

section does not affect the validity of a decision made by the

Tribunal under this Part.

Schedule 1 Binding time limits and limited merits review

Part 2 Application of amendments

34 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Part 2--Application of amendments

72 Application of amendments

(1)

The amendments made by items 1, 2, 3, 4, 5, 6, 17, 18, 19, 23, 24, 25,

26, 27, 31 and 33 of this Schedule apply in relation to applications made

to the Council after the commencement of those items.

(2)

The amendment made by item 7 of this Schedule applies in relation to

declaration recommendations made to the designated Minister after the

commencement of that item.

(3)

The amendments made by items 8, 9 and 10 of this Schedule apply in

relation to revocation recommendations made to the designated Minister

after the commencement of those items.

(4)

The amendments made by items 11, 12, 13, 14, 15, 16, 34, 35, 36, 42,

43, 44, 45, 46, 47, 48, 51, 52, 53, 54, 55, 56, 57, 66, 67, 68, 69, 70 and

71 of this Schedule apply in relation to applications for review made to

the Tribunal after the commencement of those items.

(5)

The amendments made by items 20, 21, 22, 28, 29, 30 and 32 of this

Schedule apply in relation to recommendations received by the

Commonwealth Minister after the commencement of those items.

(6)

The amendments made by items 37, 38, 39, 40 and 41 of this Schedule

apply in relation to applications made to the Commission after the

commencement of those items.

(7)

The amendments made by items 49 and 50 of this Schedule apply in

relation to access disputes notified after the commencement of those

items.

(8)

The amendments made by items 58, 59, 60, 61, 62, 63, 64 and 65 of this

Schedule apply in relation to access undertaking applications and access

code applications made to the Commission after the commencement of

those items.

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 35

Schedule 2--Services that are ineligible to be

declared services

Trade Practices Act 1974

1 Section 44B

Insert:

ineligibility recommendation means a recommendation made by

the Council under section 44LB.

2 Section 44B

Insert:

proposed facility means a facility that is proposed to be constructed

(but the construction of which has not started) that will be:

(a) structurally separate from any existing facility; or

(b) a major extension of an existing facility.

3 Subsection 44D(1)

Omit "(2) or (3)", substitute "(2), (3), (4) or (5)".

4 At the end of section 44D

Add:

(4) In relation to deciding whether a service is ineligible to be a

declared service in a case where:

(a) a person who is, or expects to be, the provider of the service

is a State or Territory body; and

(b) the State or Territory concerned is a party to the Competition

Principles Agreement;

the responsible Minister of the State or Territory is the designated

Minister.

(5) In relation to revoking a decision:

(a) that a service is ineligible to be a declared service; and

(b) that was made by the responsible Minister of a State or

Territory;

Schedule 2 Services that are ineligible to be declared services

36 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

the responsible Minister of that State or Territory is the designated

Minister.

5 At the end of section 44G

Add:

(7) The Council cannot recommend that a service be declared if there

is in force a decision of the designated Minister under

section 44LG that the service is ineligible to be a declared service.

6 After subsection 44H(6B)

Insert:

(6C) The designated Minister cannot declare a service if there is in force

a decision of the designated Minister under section 44LG that the

service is ineligible to be a declared service.

7 After Division 2 of Part IIIA

Insert:

Division 2AA--Services that are ineligible to be declared

Subdivision A--Scope of Division

44LA Constitutional limits on operation of this Division

This Division does not apply in relation to a service unless:

(a) the person who is, or expects to be, the provider of the

service is a corporation (or a partnership or joint venture

consisting wholly of corporations); or

(b) access to the service is (or would be) in the course of, or for

the purposes of, constitutional trade or commerce.

Subdivision B--Ineligibility recommendation by Council

44LB Ineligibility recommendation

Person may request recommendation

(1) A person with a material interest in a particular service proposed to

be provided by means of a proposed facility may make a written

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 37

application to the Council asking the Council to recommend that

the designated Minister decide that the service is ineligible to be a

declared service.

Note:

The application must be made before construction of the facility

commences: see the definition of proposed facility in section 44B.

Council must make recommendation

(2) After receiving the application, the Council must, after having

regard to the objects of this Part:

(a) recommend to the designated Minister:

(i) that he or she decide that the service is ineligible to be a

declared service; and

(ii) the period for which the decision should be in force

(which must be at least 20 years); or

(b) recommend to the designated Minister that he or she decide

that the service is not ineligible to be a declared service.

Note 1:

There are time limits that apply to the Council's recommendation: see

section 44LD.

Note 2:

The Council may request information and invite public submissions

on the application: see sections 44LC and 44LE.

Note 3:

The Council must publish its recommendation: see section 44LF.

Limits on recommendation

(3) The Council cannot recommend that the designated Minister

decide that the service is ineligible to be a declared service unless it

is satisfied of both of the following matters:

(a) that the service will be provided by means of the proposed

facility when constructed;

(b) that it is not satisfied of at least one of the matters referred to

in subsection 44G(2) in relation to the service to be provided

by means of the proposed facility.

(4) If the applicant is a person other than the designated Minister, the

Council may recommend that the designated Minister decide that

the service is not ineligible to be a declared service if the Council

thinks that the application was not made in good faith. This

subsection does not limit the grounds on which the Council may

decide to recommend that the designated Minister decide that the

service is not ineligible to be a declared service.

Schedule 2 Services that are ineligible to be declared services

38 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Relationship between ineligibility recommendations, access

undertakings and competitive tender processes

(5) The Council may recommend that the designated Minister decide

that the service is ineligible to be a declared service even if the

service is the subject of an access undertaking in operation under

Division 6.

(6) The Council may recommend that the designated Minister decide

that the service is ineligible to be a declared service even if:

(a) the service is proposed to be provided by means of a facility

specified under paragraph 44PA(2)(a); and

(b) a decision of the Commission is in force under subsection

44PA(3) approving a tender process, for the construction and

operation of the facility, as a competitive tender process.

Applicant may withdraw application

(7) The applicant may withdraw the application at any time before the

Council makes a recommendation relating to it.

44LC Council may request information

(1) The Council may give a person a written notice requesting the

person give to the Council, within a specified period, information

of a kind specified in the notice that the Council considers may be

relevant to deciding what recommendation to make on an

application under section 44LB.

(2) The Council must:

(a) give a copy of the notice to:

(i) if the person is not the applicant--the applicant; and

(ii) if the person is not the provider, or the person who

expects to be the provider--that person; and

(b) publish, by electronic or other means, the notice.

(3) In deciding what recommendation to make on the application, the

Council:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 39

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

44LD Time limit for Council recommendations

Council to make recommendation within the consideration period

(1) The Council must make a recommendation on an application under

section 44LB within the consideration period.

(2) The consideration period is a period of 180 days (the expected

period), starting at the start of the day the application is received,

unless the consideration period is extended under subsection (7).

Stopping the clock

(3) In working out the expected period in relation to a recommendation

on an application under section 44LB, in a situation referred to in

column 1 of an item of the following table, disregard any day in a

period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column

Situation

Column 2

Start day

Column 3

End day

An agreement is

made in relation

to the

application

under

subsection (5)

The first day of

the period

specified in the

agreement

The last day of the period specified

in the agreement

A notice is given

under subsection

44LC(1)

requesting

information in

relation to the

application

The day on

which the notice

is given

The last day of the period specified

in the notice for the giving of the

information

(4) Despite subsection (3):

Schedule 2 Services that are ineligible to be declared services

40 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(a) do not disregard any day more than once; and

(b) the total period that is disregarded under that subsection must

not exceed 60 days.

Stopping the clock by agreement

(5) The Council and the applicant may agree in writing that a specified

period is to be disregarded in working out the expected period.

(6) The Council must publish, by electronic or other means, the

agreement.

Extension of time for making decision

(7) If the Council is unable to make a recommendation within the

consideration period (whether it is the expected period or it has

been previously extended under this subsection), it must, by notice

in writing to the designated Minister, extend the consideration

period by a specified period.

(8) The notice must:

(a) specify when the Council must now make a recommendation

on the application; and

(b) include a statement explaining why the Council has been

unable to make a decision on the recommendation within the

consideration period.

(9) The Council must give a copy of the notice to:

(a) the applicant; and

(b) if the applicant is not the person who is, or expects to be, the

provider--that person.

Publication

(10) If the Council extends the consideration period under

subsection (7), it must publish a notice in a national newspaper:

(a) stating that it has done so; and

(b) specifying the day by which it must now make a

recommendation on the application.

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 41

Failure to comply with time limit does not affect validity

(11) Failure by the Council to comply with a time limit set in this

section does not affect the validity of a recommendation made

under this section.

44LE Council may invite public submissions on the application

Invitation

(1) The Council may publish, by electronic or other means, a notice

inviting public submissions on an application under section 44LB

if it considers that it is appropriate and practicable to do so.

(2) The notice must specify how submissions may be made and the

day by which submissions may be made (which must be at least 14

days after the day the notice is published).

Consideration of submissions

(3) Subject to subsection (6), in deciding what recommendation to

make on the application, the Council:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

Council may make submissions publicly available

(4) The Council may make any written submission, or a written record

(which may be a summary) of any oral submission, publicly

available.

Confidentiality

(5) A person may, at the time of making a submission, request that the

Council:

(a) not make the whole or a part of the submission available

under subsection (4); and

(b) not publish or make available the whole or a part of the

submission under section 44LF;

because of the confidential commercial information contained in

the submission.

Schedule 2 Services that are ineligible to be declared services

42 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(6) If the Council refuses such a request:

(a) for a written submission--the Council must, if the person

who made it so requires, return the whole or the part of it to

the person; and

(b) for an oral submission--the person who made it may inform

the Council that the person withdraws the whole or the part

of it; and

or the person withdraws the whole or the part of the

submission, the Council must not:

(i) make the whole or the part of the submission available

under subsection (4); and

(ii) publish or make available the whole or the part of the

submission under section 44LF; and

(iii) have regard to the whole or the part of the submission in

making its recommendation on the application.

44LF Council must publish its recommendation

Council must publish its recommendation

(1) The Council must publish, by electronic or other means, a

recommendation under section 44LB and its reasons for the

recommendation.

(2) The Council must give a copy of the publication to:

(a) the person who made the application under section 44LB;

and

(b) if the applicant is not the person who is, or expects to be, the

provider--that person.

Timing

(3) The Council must do the things under subsections (1) and (2) on

the day the designated Minister publishes his or her decision on the

recommendation or as soon as practicable after that day.

Consultation

(4) Before publishing under subsection (1), the Council may give any

one or more of the following persons:

(a) the person who made the application under section 44LB;

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 43

(b) any other person the Council considers appropriate;

a notice in writing:

(d) inviting the person to make a written submission to the

Council within 14 days after the day the notice is given

identifying any information the person considers should not

be published because of its confidential commercial nature.

(5) The Council must have regard to any submission so made in

deciding what to publish. It may have regard to any other matter it

considers relevant.

Subdivision C--Designated Minister's decision on ineligibility

44LG Designated Minister's decision on ineligibility

(1) On receiving an ineligibility recommendation, the designated

Minister must:

(a)

decide:

(i) that the service is ineligible to be a declared service; and

(ii) the period for which the decision is in force (which must

be at least 20 years); or

(b) decide that the service is not ineligible to be a declared

service.

Note:

The designated Minister must publish his or her decision: see

section 44LH.

(2) The designated Minister must have regard to the objects of this

Part in making his or her decision.

(3) The designated Minister may decide that the service is ineligible to

be a declared service even if the service is the subject of an access

undertaking in operation under Division 6.

(4) The designated Minister may decide that the service is ineligible to

be a declared service even if:

(a) the service is proposed to be provided by means of a facility

specified under paragraph 44PA(2)(a); and

(b) a decision of the Commission is in force under subsection

44PA(3) approving a tender process, for the construction and

operation of the facility, as a competitive tender process.

Schedule 2 Services that are ineligible to be declared services

44 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(5) The designated Minister must not decide that the service is

ineligible to be a declared service unless he or she is satisfied of

both of the following matters:

(a) that the service is to be provided by means of the proposed

facility when constructed;

(b) that he or she is not satisfied of at least one of the matters

referred to in subsection 44H(4) in relation to the service to

be provided by means of the proposed facility.

(6) If the designated Minister does not publish under section 44LH his

or her decision on the ineligibility recommendation within the

period starting at the start of the day the recommendation is

received and ending at the end of 60 days after that day:

(a) the designated Minister is taken, immediately after the end of

that 60-day period, to have made a decision under

subsection (1) in accordance with the ineligibility

recommendation and to have published that decision under

section 44LH; and

(b) if the Council recommended that the designated Minister

decide that the service be ineligible to be a declared

service--the period for which the decision is in force is taken

to be the period recommended by the Council.

(7) A decision of the designated Minister under subsection (1) is not a

legislative instrument.

44LH Designated Minister must publish his or her decision

(1) The designated Minister must publish, by electronic or other

means, his or her decision on an ineligibility recommendation and

his or her reasons for the decision.

(2) The designated Minister must give a copy of the publication to the

person who made the application under section 44LB.

Consultation

(3) Before publishing under subsection (1), the designated Minister

may give any one or more of the following persons:

(a) the person who made the application under section 44LB;

(b) any other person the designated Minister considers

appropriate;

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 45

a notice in writing:

publish; and

(d) inviting the person to make a written submission to the

designated Minister within 14 days after the day the notice is

given identifying any information the person considers

should not be published because of its confidential

commercial nature.

(4) The designated Minister must have regard to any submission so

made in deciding what to publish. He or she may have regard to

any other matter he or she considers relevant.

Subdivision D--Revocation of ineligibility decision

44LI Revocation of ineligibility decision

Council may recommend revocation if facility materially different

or upon request

(1) The Council may recommend to the designated Minister that the

designated Minister revoke his or her decision (the ineligibility

decision) that a service is ineligible to be a declared service. The

Council must have regard to the objects of this Part in making its

recommendation.

(2) The Council cannot recommend that a decision be revoked unless:

(a) it is satisfied that, at the time of the recommendation, the

facility that is (or will be) used to provide the service

concerned is so materially different from the proposed

facility described in the application made under section 44LB

that the Council is satisfied of all of the matters mentioned in

subsection 44G(2) in relation to the service; or

(b) the person who is, or expects to be, the provider of the

service that is provided, or that is proposed to be provided, by

means of the facility requests that it be revoked.

Minister must decide whether to revoke

(3) On receiving a recommendation that the designated Minister

revoke the ineligibility decision, the designated Minister must

Schedule 2 Services that are ineligible to be declared services

46 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

either revoke the ineligibility decision or decide not to revoke the

ineligibility decision.

(4) The designated Minister must have regard to the objects of this

Part in making his or her decision.

Minister must publish decision

(5) The designated Minister must publish, by electronic or other

means, the decision to revoke or not to revoke the ineligibility

decision.

(6) If the designated Minister decides not to revoke the ineligibility

decision, the designated Minister must give reasons for the

decision to the person who is, or expects to be, the provider of the

service concerned when the designated Minister publishes the

decision.

Deemed decision of Minister

(7) If the designated Minister does not publish his or her decision to

revoke or not to revoke the ineligibility decision within the period

starting at the start of the day the recommendation to revoke the

ineligibility decision is received and ending at the end of 60 days

after that day, the designated Minister is taken, immediately after

the end of that 60-day period:

(a) to have made a decision (the deemed decision) under

subsection (3) that the ineligibility decision be revoked; and

(b) to have published the deemed decision under subsection (5).

Limits on when a revocation can be made

(8) The designated Minister cannot revoke the ineligibility decision

without receiving a recommendation from the Council that the

ineligibility decision be revoked.

When a revocation comes into operation

(9) If the designated Minister revokes the ineligibility decision, the

revocation comes into operation at:

(a) if, within 21 days after the designated Minister publishes his

or her decision, no person has applied to the Tribunal for

review of the decision--the end of that period; or

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 47

(b) if a person applies to the Tribunal within that period for

review of the decision and the Tribunal affirms the

decision--the time of the Tribunal's decision.

Decision is not a legislative instrument

(10) A decision of the designated Minister under subsection (3) is not a

legislative instrument.

Subdivision E--Review of decisions

44LJ Review of ineligibility decisions

Application for review

(1) A person whose interests are affected by a decision of the

designated Minister under subsection 44LG(1) may apply in

writing to the Tribunal for a review of the decision.

(2) An application for review must be made within 21 days after

publication of the designated Minister's decision.

(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in subsection

44ZZOAA(7).

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the designated Minister.

Council to provide assistance

(5) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

(6) Without limiting subsection (5), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(7) The Tribunal must:

(a) give a copy of the notice to:

Schedule 2 Services that are ineligible to be declared services

48 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(i) the person who applied for review; and

(ii) the person who is, or expects to be, the provider of the

service; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Tribunal's decision

(8) If the designated Minister decided that a service is ineligible to be a

declared service, the Tribunal may affirm, vary or set aside the

decision.

Note:

If the Tribunal sets aside a decision of the designated Minister that a

service is ineligible to be a declared service, the designated Minister's

decision is no longer in force. This means the designated Minister is

no longer prevented by subsection 44H(6C) from declaring the

service.

(9) If the designated Minister decided that a service is not ineligible to

be a declared service, the Tribunal may either:

(a) affirm the designated Minister's decision; or

(b) set aside the designated Minister's decision and decide that

the service is ineligible to be a declared service for a

specified period (which must be at least 20 years).

Effect of Tribunal's decision

(10) The Tribunal's decision is taken to be a decision by the designated

Minister for all purposes of this Part (except this section).

44LK Review of decision to revoke or not revoke an ineligibility

decision

Application for review

(1) A person whose interests are affected by a decision of the

designated Minister under subsection 44LI(3) may apply in writing

to the Tribunal for a review of the decision.

(2) An application for review must be made within 21 days after

publication of the designated Minister's decision.

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 49

(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in subsection

44ZZOAA(7).

Note:

There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal's decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the designated Minister.

Council to give assistance

(5) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

(6) Without limiting subsection (5), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(7) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the person who is, or expects to be, the provider of the

service; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Tribunal's decision

(8) If the designated Minister decided to revoke his or her decision

(the ineligibility decision) that the service is ineligible to be a

declared service, the Tribunal may either:

(a) affirm the designated Minister's decision; or

(b) set aside the designated Minister's decision to revoke the

ineligibility decision.

(9) If the designated Minister decided not to revoke his or her

ineligibility decision, the Tribunal may either:

(a) affirm the designated Minister's decision; or

Schedule 2 Services that are ineligible to be declared services

50 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(b) set aside the designated Minister's decision and revoke the

ineligibility decision.

Effect of Tribunal's decision

(10) If the Tribunal sets aside the designated Minister's decision to

revoke his or her ineligibility decision, the ineligibility decision is

taken never to have been revoked.

(11) If the Tribunal sets aside the designated Minister's decision and

revokes the ineligibility decision, the Tribunal's decision is, for the

purposes of this Part other than this section, taken to be a decision

by the Minister to revoke his or her decision that the service is

ineligible to be a declared service.

Subdivision F--Other matters

44LL Ineligibility decisions subject to alteration, cancellation etc.

(1) A decision of the designated Minister under section 44LG that a

service is ineligible to be a declared service is made on the basis

that:

(a) the decision may be revoked under section 44LI; and

(b) the decision may be cancelled, revoked, terminated or varied

by or under later legislation; and

revoked, terminated or varied as mentioned in any of the

above paragraphs.

(2) Subsection (1) does not, by implication, affect the interpretation of

any other provision of this Act.

8 After subsection 44PA(4)

Insert:

(4A) The Commission may approve the tender process as a competitive

tender process even if the service proposed to be provided by

means of the facility is the subject of a decision by the designated

Minister under section 44LG that the service is ineligible to be a

declared service.

9 After paragraph 44Q(b)

Services that are ineligible to be declared services Schedule 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 51

Insert:

(ba) each decision of a designated Minister under section 44LG

that a service is ineligible to be a declared service; and

(bb) each decision of a designated Minister under section 44LI to

revoke his or her decision that a service is ineligible to be a

declared service; and

Note:

The heading to section 44Q is altered by omitting "and declarations" and substituting

", declarations and ineligibility decisions".

10 After subsection 44ZZA(6A)

Insert:

(6B) The Commission may accept the undertaking even if the service is

the subject of a decision by the designated Minister under

section 44LG that the service is ineligible to be a declared service.

Schedule 3 Fixed principles in access undertakings

Part 1 Amendments

52 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Schedule 3--Fixed principles in access

undertakings

Part 1--Amendments

Trade Practices Act 1974

1 Section 44B (after paragraph (b) of the definition of access

undertaking application)

Insert:

(ba) a request made to the Commission under subsection

44ZZAAB(7) to consent to the revocation or variation of a

fixed principle included as a term of an access undertaking;

2 Section 44B (after paragraph (b) of the definition of access

undertaking decision)

Insert:

(ba) a decision under subsection 44ZZAAB(7) to consent or

refuse to consent to the revocation or variation of a fixed

principle included as a term of an access undertaking; or

3 Section 44B

Insert:

fixed principle has the meaning given by section 44ZZAAB.

4 Subsection 44ZZA(3) (note)

Repeal the note, substitute:

Note 1:

There are grounds on which the Commission may reject the

undertaking if it contains, or should contain, fixed principles: see

section 44ZZAAB.

Note 2:

The Commission may defer consideration of the undertaking if it is

also arbitrating an access dispute: see section 44ZZCB.

5 Before section 44ZZAA

Insert:

Fixed principles in access undertakings Schedule 3

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 53

44ZZAAB Access undertakings containing fixed principles

Access undertakings may contain fixed principles

(1) An access undertaking given to the Commission under subsection

44ZZA(1) may include one or more terms that, under the

undertaking, are fixed for a specified period.

(2) Each of the terms is a fixed principle and the specified period is a

fixed period. Different periods may be specified for different fixed

principles.

(3) The fixed period must:

(a)

start:

(i) when the access undertaking comes into operation; or

(ii) at a later time ascertained in accordance with the

undertaking; and

(b) extend beyond the expiry date of the undertaking.

Consideration of fixed principles

(4) The Commission may reject the undertaking if it:

(a) includes a term that is not a fixed principle and that the

Commission considers should be a fixed principle; or

(b) includes a fixed principle that the Commission considers

should be not be fixed; or

should be fixed for a period that is different from the period

specified in the undertaking.

However, the Commission must not reject the undertaking solely

on the basis that it is consistent with a fixed principle that is

included in the undertaking in compliance with subsection (6).

Fixed principles must be carried over to later undertakings

(5) Subsection (6) applies if:

(a) the Commission accepts an undertaking (the earlier

undertaking) in connection with the provision of access to a

service that includes a fixed principle; and

(b) an undertaking (the later undertaking) is given to the

Commission in connection with the provision of access to the

service within the fixed period for the fixed principle; and

Schedule 3 Fixed principles in access undertakings

Part 1 Amendments

54 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(i) the fixed principle has not been revoked under

subsection (7); and

(ii) the earlier undertaking has not been varied under

subsection 44ZZA(7) so that the fixed principle is no

longer a term of the earlier undertaking.

(6) The Commission must not accept the later undertaking under

section 44ZZA unless the undertaking includes a term that is the

same as the fixed principle.

Variation or revocation of fixed principles when no undertaking is

in operation

(7) If there is no access undertaking in operation in connection with

the provision of access to a service, the provider may revoke or

vary a fixed principle that relates to the service (including the fixed

period for the principle), but only with the consent of the

Commission. The Commission may consent to the revocation or

variation of the fixed principle if it thinks it appropriate to do so

having regard to the matters in subsection 44ZZA(3).

Note:

Subsection 44ZZA(7) contains provision for fixed principles to be

varied or revoked in the situation where there is an access undertaking

in operation. This may include a variation of the fixed period for the

fixed principle.

Alteration of fixed principles

(8) If an undertaking that is accepted by the Commission contains one

or more fixed principles, the undertaking is accepted on the basis

that:

(a) the principle may be varied or revoked under subsection (7)

or 44ZZA(7); and

(b) the principle may be cancelled, revoked, terminated or varied

by or under later legislation; and

revoked, terminated or varied as mentioned in any of the

above paragraphs.

(9) Subsection (8) does not, by implication, affect the interpretation of

any other provision of this Act.

6 At the end of section 44ZZBA

Fixed principles in access undertakings Schedule 3

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 55

Add:

Revocation or variation of fixed principles in access undertakings

(6) If the Commission consents to the revocation or variation of a

fixed principle that is included as a term of an access undertaking

under subsection 44ZZAAB(7), the revocation or variation comes

into operation at:

(a) if, within 21 days after the Commission publishes its

decision, no person has applied to the Tribunal for review of

the decision--the end of that period; or

(b) if a person applies to the Tribunal within that period for

review of the decision and the Tribunal affirms the

decision--the time of the Tribunal's decision.

(7) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent

to the revocation or variation of a fixed principle that is included as

term of an access undertaking, the revocation or variation comes

into operation at the time of the Tribunal's decision.

7 After paragraph 44ZZBF(6)(b)

Insert:

(ba) consented to the revocation or variation of a fixed principle

under subsection 44ZZAAB(7); or

8 After paragraph 44ZZBF(7)(b)

Insert:

(ba) refused to consent to the revocation or variation of a fixed

principle under subsection 44ZZAAB(7); or

9 Paragraph 44ZZBF(7)(e)

After "consent to the withdrawal or variation of the undertaking or

code", insert ", consent to the revocation or variation of the fixed

principle".

10 After subsection 44ZZC(1)

Insert:

(1A) For the purposes of subsection (1), if an access undertaking

includes one or more fixed principles, the register must also

include details of the fixed principles, including their fixed periods.

Schedule 3 Fixed principles in access undertakings

Part 2 Application of amendments

56 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Part 2--Application of amendments

11 Application provision

The amendments made by Part 1 of this Schedule apply to access

undertakings given to the Commission after the commencement of that

Part.

Amending access undertakings Schedule 4

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 57

Schedule 4--Amending access undertakings

Part 1--Amendments

Trade Practices Act 1974

1 Before subsection 44ZZA(3A)

Insert:

(3AB) The Commission may reject the undertaking if it incorporates one

or more amendments (see subsection 44ZZAAA(5)) and the

Commission is satisfied that the amendment or amendments are of

a kind, are made at a time, or are made in a manner that:

(a) unduly prejudices anyone the Commission considers has a

material interest in the undertaking; or

(b) unduly delays the process for considering the undertaking.

2 Subsection 44ZZA(7) (not including the notes)

Repeal the subsection, substitute:

(7) The provider may:

(a) withdraw the application given under subsection (1) at any

time before the Commission makes a decision on whether to

accept the application; and

(b) withdraw or vary the undertaking at any time after it has been

accepted by the Commission, but only with the consent of the

Commission.

The Commission may consent to a variation of the undertaking if it

thinks it appropriate to do so having regard to the matters in

subsection (3).

3 After section 44ZZA

Insert:

Schedule 4 Amending access undertakings

Part 1 Amendments

58 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

44ZZAAA Proposed amendments to access undertakings

Commission may give an amendment notice in relation to an

undertaking

(1) Before deciding whether to accept an undertaking given to it under

subsection 44ZZA(1) by a person who is, or expects to be, the

provider of a service, the Commission may give the person an

amendment notice in relation to the undertaking.

(2)

amendment notice is a notice in writing that specifies:

(a) the nature of the amendment or amendments (the proposed

amendment or amendments) that the Commission proposes

be made to the undertaking; and

(b) the Commission's reasons for the proposed amendment or

amendments; and

respond to the notice, which must be at least 14 days after the

day the notice was given to the person.

(3) The Commission may publish, by electronic or other means, the

amendment notice.

(4) The Commission may give more than one amendment notice in

relation to an undertaking.

Person may give a revised undertaking in response to notice

(5) If a person receives an amendment notice, the person may, within

the response period, respond to the notice by giving a revised

undertaking to the Commission that incorporates one or more

amendments.

(6) If the revised undertaking incorporates one or more amendments

that the Commission considers are not of the nature proposed in the

amendment notice and do not address the reasons for the proposed

amendments given in the amendment notice, the Commission must

not accept the revised undertaking and must return it to the person

within 21 days of receiving it.

(7) If the person gives a revised undertaking under subsection (5) and

the revised undertaking is not returned to the person under

subsection (6), the revised undertaking is taken, after the time it is

Amending access undertakings Schedule 4

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 59

given to the Commission, to be the undertaking given under

section 44ZZA for the purposes of this Part.

(8) The person is taken to have not agreed to the proposed amendment

or amendments if the person does not respond within the response

period.

Commission not required to accept revised undertaking

(9) The Commission is not required to accept the revised undertaking

under section 44ZZA.

No duty to propose amendments

(10) In considering whether to accept an undertaking, the Commission

does not have a duty to consider whether to propose one or more

amendments to the undertaking.

Notice of proposed amendment is not a legislative instrument

(11) A notice given under subsection (1) is not a legislative instrument.

4 Subsection 44ZZAA(6) (not including the note)

Repeal the subsection, substitute:

(6) The industry body may:

(a) withdraw the code given under subsection (1) at any time

before the Commission makes a decision whether to accept

the code; and

(b) withdraw or vary the code at any time after it has been

accepted by the Commission, but only with the consent of the

Commission.

The Commission may consent to a variation of the code if it thinks

it appropriate to do so having regard to the matters in

subsection (3).

Schedule 4 Amending access undertakings

Part 2 Application of amendments

60 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Part 2--Application of amendments

5 Application provisions

(1)

The amendments made by Part 1 of this Schedule, other than items 2

and 4, apply in relation to access undertakings given to the Commission

after the commencement of that Part.

(2)

The amendment made by item 2 in Part 1 of this Schedule applies in

relation to access undertakings, whether given to the Commission

before or after the commencement of that Part.

(3)

The amendment made by item 4 in Part 1 of this Schedule applies in

relation to access codes, whether given to the Commission before or

after the commencement of that Part.

Other amendments Schedule 5

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 61

Schedule 5--Other amendments

Part 1--Amendments

Trade Practices Act 1974

1 After section 29L

Insert:

29LA Resolutions without meetings

(1) If all Councillors (other than those that must not sign a document

because of subsection (3)) sign a document containing a statement

that they are in favour of a resolution in terms set out in the

document, then a resolution in those terms is taken to have been

passed at a duly constituted meeting of the Council held on the day

the document was signed, or, if the members sign the document on

different days, on the last of those days.

(2) For the purposes of subsection (1), 2 or more separate documents

containing statements in identical terms each of which is signed by

one or more Councillors are together taken to constitute one

document containing a statement in those terms signed by those

Councillors on the respective days on which they signed the

separate documents.

(3) A Councillor must not sign a document containing a statement in

favour of a resolution if the resolution concerns a matter in which

the Councillor has any pecuniary interest, being an interest that

could conflict with the proper performance of the Councillor's

functions in relation to any matter.

2 Paragraphs 44DA(1)(a) and (b)

Repeal the paragraphs.

3 Paragraph 44DA(1)(c)

Omit "Agreement", substitute "Competition Principles Agreement".

4 At the end of section 44F

Add:

Schedule 5 Other amendments

Part 1 Amendments

62 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(6) The applicant may request, in writing, the Council to vary the

application at any time before the Council makes a

recommendation relating to it.

(7) If a request is made under subsection (6), the Council must decide

to:

(a) make the variation; or

(b)

reject

the

variation.

(8) An instrument making a decision under subsection (7) is not a

legislative instrument.

(9) The Council may reject the variation if it is satisfied that the

requested variation is of a kind, or the request for the variation is

made at a time or in a manner, that:

(a) would unduly prejudice the provider (if the provider is not

the applicant) or anyone else the Council considers has a

material interest in the application; or

(b) would unduly delay the process for considering the

application.

5 Paragraph 44G(2)(d)

Repeal the paragraph.

6 Paragraph 44G(2)(e)

Repeal the paragraph, substitute:

(e) that access to the service:

(i) is not already the subject of a regime in relation to

which a decision under section 44N that the regime is an

effective access regime is in force (including as a result

of an extension under section 44NB); or

(ii) is the subject of a regime in relation to which a decision

under section 44N that the regime is an effective access

regime is in force (including as a result of an extension

under section 44NB), but the Council believes that,

since the Commonwealth Minister's decision was

published, there have been substantial modifications of

the access regime or of the relevant principles set out in

the Competition Principles Agreement;

7 Subsections 44G(3), (4) and (5)

Other amendments Schedule 5

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 63

Repeal the subsections.

8 Paragraph 44H(4)(d)

Repeal the paragraph.

9 Paragraph 44H(4)(e)

Repeal the paragraph, substitute:

(e) that access to the service:

(i) is not already the subject of a regime in relation to

which a decision under section 44N that the regime is an

effective access regime is in force (including as a result

of an extension under section 44NB); or

(ii) is the subject of a regime in relation to which a decision

under section 44N that the regime is an effective access

regime is in force (including as a result of an extension

under section 44NB), but the designated Minister

believes that, since the Commonwealth Minister's

decision was published, there have been substantial

modifications of the access regime or of the relevant

principles set out in the Competition Principles

Agreement;

10 Subsections 44H(5), (6) and (6A)

Repeal the subsections.

11 Subsection 44I(2)

Repeal the subsection, substitute:

(2)

If:

(a) an application for review of a declaration is made within 21

days after the day the declaration is published; and

(b) the Tribunal makes an order under section 44KA staying the

operation of the declaration;

the declaration does not begin to operate until the order is no

longer of effect under subsection 44KA(6) or the Tribunal makes a

decision on the review to affirm the declaration, whichever is the

earlier.

12 At the end of subsection 44K(6)

Schedule 5 Other amendments

Part 1 Amendments

64 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Add "(including for the purposes of deciding whether to make an order

under section 44KA)".

13 After section 44K

Insert:

44KA Tribunal may stay operation of declaration

(1) Subject to this section, an application for review of a declaration

under subsection 44K(1) does not:

(a) affect the operation of the declaration; or

(b) prevent the taking of steps in reliance on the declaration.

(2) On application by a person who has been made a party to the

proceedings for review of a declaration, the Tribunal may:

(a) make an order staying, or otherwise affecting the operation or

the taking of steps in reliance on, the declaration if the

Tribunal considers that:

(i) it is desirable to make the order after taking into account

the interests of any person who may be affected by the

review; and

(ii) the order is appropriate for the purpose of securing the

effectiveness of the hearing and determination of the

application for review; or

(b) make an order varying or revoking an order made under

paragraph (a) (including an order that has previously been

varied on one or more occasions under this paragraph).

(3) Subject to subsection (4), the Tribunal must not:

(a) make an order under subsection (2) unless the Council has

been given a reasonable opportunity to make a submission to

the Tribunal in relation to the matter; or

(b) make an order varying or revoking an order in force under

paragraph (2)(a) (including an order that has previously been

varied on one or more occasions under paragraph (2)(b))

unless:

(i) the Council; and

(ii) the person who requested the making of the order under

paragraph (2)(a); and

(iii) if the order under paragraph (2)(a) has previously been

varied by an order or orders under paragraph (2)(b)--

Other amendments Schedule 5

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 65

the person or persons who requested the making of the

last-mentioned order or orders;

have been given a reasonable opportunity to make

submissions to the Tribunal in relation to the matter.

(4) Subsection (3) does not prohibit the Tribunal from making an order

without giving to a person referred to in that subsection a

reasonable opportunity to make a submission to the Tribunal in

relation to a matter if the Tribunal is satisfied that, by reason of the

urgency of the case or otherwise, it is not practicable to give that

person such an opportunity.

(5) If an order is made under subsection (3) without giving the Council

a reasonable opportunity to make a submission to the Tribunal in

relation to a matter, the order does not come into operation until a

notice setting out the terms of the order is given to the Council.

(6) An order in force under paragraph (2)(a) (including an order that

has previously been varied on one or more occasions under

paragraph (2)(b)):

(a) is subject to such conditions as are specified in the order; and

(b) has effect until:

(i) if a period for the operation of the order is specified in

the order--the expiration of that period or, if the

application for review is decided by the Tribunal before

the expiration of that period, the decision of the

Tribunal on the application for review comes into

operation; or

(ii) if no period is so specified--the decision of the Tribunal

on the application for review comes into operation.

44KB Tribunal may order costs be awarded

(1) If the Tribunal is satisfied that it is appropriate to do so, the

Tribunal may order that a person who has been made a party to

proceedings for a review of a declaration under section 44K pay all

or a specified part of the costs of another person who has been

made a party to the proceedings.

(2) However, the Tribunal must not make an order requiring the

designated Minister to pay some or all of the costs of another party

to proceedings unless the Tribunal considers that the designated

Schedule 5 Other amendments

Part 1 Amendments

66 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

Minister's conduct in the proceedings was engaged in without due

regard to:

(a) the costs that would be incurred by the other party to the

proceedings as a result of that conduct; or

(b) the time required by the Tribunal to make a decision on the

review as a result of that conduct; or

the purposes of the review as a result of that conduct; or

(d) the submissions or arguments made during the proceedings to

the Tribunal by the other party or parties to the proceedings

or by the Council.

(3) If the Tribunal makes an order under subsection (1), it may make

further orders that it considers appropriate in relation to the

assessment or taxation of the costs.

(4) The regulations may make provision for and in relation to fees

payable for the assessment or taxation of costs ordered by the

Tribunal to be paid.

(5) If a party (the first party) is ordered to pay some or all of the costs

of another party under subsection (1), the amount of the costs may

be recovered in the Federal Court as a debt due by the first party to

the other party.

14 Subsection 44V(1)

Omit "or 44ZZCB", substitute ", 44YA, 44ZZCB or 44ZZCBA".

15 After subsection 44W(4)

Insert:

(4A) If an application for review of a declaration of a service has been

made under subsection 44K(1), the Commission must not make a

determination in relation to the service until the Tribunal has made

its decision on the review.

16 At the end of Subdivision C of Division 3 of Part IIIA

Add:

Other amendments Schedule 5

Amendments Part 1

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 67

44YA Commission must terminate arbitration if declaration varied

or set aside by Tribunal

If the Commission is arbitrating a dispute in relation to a declared

service and the Tribunal sets aside or varies the declaration in

relation to the service under section 44K, the Commission must

terminate the arbitration.

17 Subsection 44ZZAB(1)

Omit "Despite subsection 44ZZAA(4), the", substitute "The".

18 Division 6B of Part IIIA (heading)

Repeal the heading, substitute:

Division 6B--Overlap among determinations, registered

contracts, access undertakings and Tribunal

review

19 After section 44ZZCB

Insert:

44ZZCBA Deferral of arbitration if review is underway

Commission may defer arbitration if declaration not stayed

(1)

If:

(a) the Commission is arbitrating an access dispute relating to

one or more matters of access to a declared service; and

(b) an application for review of the declaration of the service has

been made under subsection 44K(1); and

staying the operation of the declaration;

then the Commission may, by notice in writing to each party to the

arbitration, decide to defer arbitrating the access dispute until the

Tribunal has made its decision on the review if it considers it

appropriate to do so.

Commission must defer arbitration if declaration stayed

(2)

If:

Schedule 5 Other amendments

Part 1 Amendments

68 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

(a) the Commission is arbitrating an access dispute relating to

one or more matters of access to a declared service; and

(b) an application for review of the declaration of the service has

been made under subsection 44K(1); and

operation of the declaration;

then the Commission must, by notice in writing to each party to the

arbitration, defer arbitrating the access dispute until the Tribunal

has made its decision on the review.

Resumption of arbitration if declaration affirmed

(3) If the Commission defers arbitrating the access dispute and the

Tribunal affirms the declaration, the Commission must resume

arbitrating the dispute.

Termination of arbitration if declaration varied or set aside

(4) If the Commission defers arbitrating the access dispute and the

Tribunal sets aside or varies the declaration, the Commission must

terminate the arbitration.

(5)

If:

(a) an arbitration is terminated under subsection (4) or

section 44YA; and

(b) an access dispute is notified under section 44S in relation to

access to the same declared service; and

terminated arbitration;

then the Commission may have regard to any record made in the

course of the terminated arbitration if it considers it appropriate to

do so.

Notices are not legislative instruments

(6) A notice given under subsection (1) or (2) is not a legislative

instrument.

Other amendments Schedule 5

Application of amendments Part 2

Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009 69

Part 2--Application of amendments

20 Application--resolutions without meetings

The amendment made by item 1 of this Schedule applies in relation to

documents signed by all Councillors (other than those that must not sign

a document because of subsection 29LA(3) of the Trade Practices Act

1974 as inserted by item 1 of this Schedule) after the commencement of

that item.

21 Application of effective access regime criterion

amendments

(1)

The amendments made by items 2 (to the extent that it repeals

paragraph 44DA(1)(a) of the Trade Practices Act 1974), 6 and 7 of this

Schedule apply in relation to applications received after the

commencement of those items.

(2)

The amendments made by items 2 (to the extent that it repeals

paragraph 44DA(1)(b) of the Trade Practices Act 1974), 9 and 10 of

this Schedule apply in relation to declaration recommendations received

after the commencement of those items (where the applications for

declaration recommendations were also made after commencement).

22 Application of health and safety criterion amendments

(1)

The amendment made by item 5 of this Schedule applies in relation to

applications made after the commencement of that item.

(2)

The amendment made by item 8 of this Schedule applies in relation to

declaration recommendations received after the commencement of that

item (where the applications for declaration recommendations were also

made after commencement).

23 Application--variations to declaration applications

The amendment made by item 4 of this Schedule applies in relation to

applications made to the Council after the commencement of that item.

24 Application--stay of declarations and costs

The amendments made by items 11, 12, 13 and 15 of this Schedule

apply in relation to applications for review made to the Tribunal after

the commencement of those items.

Schedule 5 Other amendments

Part 2 Application of amendments

70 Trade Practices Amendment (Infrastructure Access) Bill 2009 No. , 2009

25 Application--arbitration while review underway

The amendments made by items 14, 16, 18 and 19 of this Schedule

apply in relation to access disputes notified after the commencement of

those items (where applications for review were also made after

commencement).

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